For the reasons set forth herein, the Court grants Defendant’s motion to
dismiss Claim No. 116722.

The underlying claim, which is verified March 30, 2009 and was filed on April
16, 2009, seeks damages for defamation, negligence, and emotional distress
arising out of a written determination made by the New York State Office of
Children and Family Services on March 31, 2008.

Defendant moves to dismiss the claim based upon lack of personal jurisdiction,
lack of subject matter jurisdiction, and failure to state a cause of action. In
support of its motion, Defendant argues that the claim improperly lists the New
York State Office of Children and Family Services as the defendant; that while a
notice of intention to serve a claim was served upon the Commissioner of the New
York State Office of Children and Family Services on May 20, 2008, it was never
served upon the Office of the Attorney General, making the service of the Claim
upon the Office of the Attorney General on March 31, 2009 untimely; that this
Court lacks jurisdiction to hear a challenge to the determination of the New
York State Office of Children and Family Services; and that no actions with
damages would lie for the discretionary determination of the Office of Children
and Family Services, which is entitled to absolute immunity in its
quasi-judicial function.

Claimant opposes the motion on the basis that she can amend her petition to
correct the defective caption and that the New York State Office of Children and
Family Services is a subdivision of the State of New York and therefore liable
for judgment of the Court of Claims. Claimant further argues that a Supreme
Court decision rendered with respect to Claimant’s petition pursuant to
Article 78 of the Civil Practice Law and Rules states that the claims of grossly
negligent infliction of harm and emotional distress, defamation, negligence, and
intentional infliction of harm and emotional distress should be raised in the
Court of Claims.

As the issue of jurisdiction is potentially fatal, the Court will address it
first.

Whether characterized as a claim for an intentional tort or an unintentional
tort, the time period for serving the claim upon the Attorney General is 90 days
from the date of accrual, unless the claimant, within said time, serves the
Attorney General with a written notice of intention to file a claim, in which
event the claim would need to be filed and served upon the Attorney General
within one year after accrual of the claim for an intentional tort or within two
years after accrual of the claim for an unintentional tort (Court of Claims Act
§§10 [3], 10 [3-b]). Claims and notices of intention to file a claim
must be served upon the Attorney General by personal service or certified mail,
return receipt requested (Court of Claims Act §11[a]).

Compliance with the filing and service requirements contained in sections 10
and 11 of the Court of Claims Act is a jurisdictional prerequisite to bringing
and maintaining an action in the Court of Claims (Buckles v State of New
York, 221 NY 418 [1917]), and failure to comply constitutes a fatal
jurisdictional defect requiring dismissal (Thomas v State of New York,
144 AD2d 882 [3d Dept 1988]; Finnerty v New York State Thruway Auth., 75
NY2d 721 [1989]; Matter of Dreger v New York State Thruway Auth., 177
AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New
York, 193 AD2d 1037 [3d Dept 1993]).

The claim herein accrued on March 31, 2008, the date of the written
determination of the New York State Office of Children and Family Services.
Accordingly, the claim should have been served upon the Office of the Attorney
General on or before June 29, 2008, unless a written notice of intention to file
a claim was served upon the Attorney General within said time frame. As neither
a written notice of intention to file a claim nor a claim were served upon the
Attorney General on or before said date, the claim is untimely and must be
dismissed.

Based upon the foregoing, the Court grants Defendant’s motion to dismiss
(M-76753) and dismisses Claim No. 116722.

September 22,
2009Albany, New York

HON. JUDITH A. HARDJudge of the Court of
Claims

Papers Considered:

1. Notice of Motion to Dismiss and Affidavit in Support of Motion to Dismiss,
sworn to

April 23, 2009, with Exhibits;

2. Affidavit in Opposition to Motion to Dismiss, dated May 20, 2009, with
Exhibit.